# Sonu Kanoujia v. State of U.P

- **Citation:** (2022) 7 ILRA 1174
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022
- **Case number:** Jail Appeal No. 75 of 2021
- **Bench:** Siddhartha Varma, Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sonu-kanoujia-v-state-of-u-p-48742
- **Pages:** 13

## Headnote

Criminal Law- Indian Penal Code, 1860-
Section 376 - POCSO Act, 2012 - Section 5
(f), (m)/6- Section 29 - Section 30- In the
cases of POCSO Act, the burden of proof
lies on the accused and there is no
presumption of innocence of the accused-
However, the presumption, under Section
30 of the Act, as to the existence of
motive, intention, knowledge etc., can be
rebutted by an accused. It may be noticed
that under Section 30 (2) of the Act a fact
must be proved, like in all criminal
prosecutions, beyond reasonable doubt.

In offences under the POCSO Act although there
is no presumption of the innocence in favour of
the accused but the same is rebuttable.

Criminal Law- Indian Evidence Act, 1872-
Sections 3 , 118 & 145- The Oaths Act,
1969- Proviso to Section 4(1) - Sec. 7-
The prosecutrix, P.W. - 3 shall be treated
to be an injured witness-The evidence of
the injured prosecutrix, P.W. - 3, also
finds support from the medical report and
evidence of P.W.-4, Dr. Deepa Tyagi-The
evidence of the prosecutrix is wholly
reliable, trustworthy and admissible in
evidence which alone proves the guilt of
the accused beyond reasonable doubt-

Settled law that the prosecutrix stands on the
same footing as an injured witness and where
her testimony is consistent and cogent, the
same corroborated by other materials, then it is
sufficient to bring home the guilt of the accused.

Criminal
Law
-
Code
of
Criminal
Procedure,
1973-
Section
154-
First
Information Report- Delay in lodging if
fatal-Delay of two days in lodging the first
information report-In this case, there is an
allegation of sexual assault upon a girl
child. In the event of a sexual offence with
a woman or a girl child of a family, before
lodging a first information report the
family thinks twice before taking any
action. So the delay in lodging the first
information report was very normal.

Delay in lodging of FIR in cases of sexual
assault cannot be held to be fatal since there is
a natural hesitancy in reporting the occurrence
due to social factors.

Criminal Law - Indian Penal Code, 1860-
Section 376 , POCSO Act, 2012 - Section 5
(f), (m)/6- Conviction under- Quantum of
Punishment- Since the case of the accused
-Appellant is covered by Section 376 (2)
where, the minimum imprisonment of 10
years has been provided, therefore, the
Court is of the opinion that considering
the conditions that the accused-appellant
is the sole bread earner of his family and
he is a young man, having no previous
criminal antecedents, there is possibility
of reform and therefore, it would be
appropriate

## Text

_Characters 0–39,831 of 40,889. This is a partial read: ask again with offset=39831 for what follows._

1174 INDIAN LAW REPORTS ALLAHABAD SERIES
can indicate that the revisionist had
tendered the said amount in cash. It is only
on the basis of presumption that the said
transaction has been taxed by the revenue.

13. It is noted that the revenue has relied
only on the books of account of M/s Campco
Ltd., wherein the said transaction has been
shown in favour of the revisionist. It is also
noticed that the first appellate authority has
noted that it was habit of M/s Campco Ltd. to
maintain fake entries of sale, and merely on
the basis of the said entry appearing in the
books of account of M/s Campco Ltd., it
cannot be said that it is the revisionist who had
purchased the said 'supari'.

14. Be that as it may, there is no
evidence or material available on record
which can link the said transaction to the
revisionist. In this regard learned counsel for
the revisionist has relied upon the judgment
of this Court in the case of Om Prakash
Sharma Vs. Commissioner of Trade Tax,
2009 UPTC 578, wherein this Court in para
7 has held as under :

"7. The fundamental defect in the three
orders of the authorities below is that there is
no cogent and positive evidence on the record
of the Department to show that it is the
dealer-applicant,
who
carried
on
any
business of sale or purchase of silver
ornaments by receiving those parcel. The
authorities below have sought to tax the
dealer-applicant on the basis of presumptions
and assumptions. Suspicion, howsoever
strong may be, cannot be relied upon. The
applicant-dealer is not a registered dealer
under the Act and the burden lay on the
shoulders of the Department to prove on the
basis of the relevant and cogent material that
the applicant is a dealer whose turnover is
above the exemption limit as prescribed
under the Act."

15. Merely because he said transaction
is reflected in the books of account of one
party, does raise a presumption about
participation of the other party in the said
transaction, but solely on the basis of said
entry, without any other supporting material
in form of documents, independent material
evidencing the said transaction, books of
account of the other party, an assessee cannot
be saddled with tax liability merely on the
basis of presumption.

16. Considering the aforesaid this Court
is of the considered view that there was no
material either in the books of account or any
other material which can link the said sale of
'supari' to the revisionist and consequently,
this Court do not find any infirmity in the
findings recorded by the first appellate
authority and the Tribunal has come to a
erroneous conclusion only on the basis of
entries in the books of account of M/s
Campco Ltd., Kanpur.

17. In the light of above, revision is
allowed. Judgment and order of Tribunal
dated 27.07.2007, is hereby set aside. The
questions of law are decided in favour of
revisionist and against the revenue.
----------
(2022)07ILR A1174
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.05.2022

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE UMESH CHANDRA SHARMA, J.

Jail Appeal No. 75 of 2021

Sonu Kanoujia ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
7 All. Sonu Kanoujia Vs. State of U.P.
1175
From Jail, Ms. Beena Mishra

Counsel for the Opposite Party:
A.G.A.

Criminal Law- Indian Penal Code, 1860-
Section 376 - POCSO Act, 2012 - Section 5
(f), (m)/6- Section 29 - Section 30- In the
cases of POCSO Act, the burden of proof
lies on the accused and there is no
presumption of innocence of the accused-
However, the presumption, under Section
30 of the Act, as to the existence of
motive, intention, knowledge etc., can be
rebutted by an accused. It may be noticed
that under Section 30 (2) of the Act a fact
must be proved, like in all criminal
prosecutions, beyond reasonable doubt.

In offences under the POCSO Act although there
is no presumption of the innocence in favour of
the accused but the same is rebuttable.

Criminal Law- Indian Evidence Act, 1872-
Sections 3 , 118 & 145- The Oaths Act,
1969- Proviso to Section 4(1) - Sec. 7-
The prosecutrix, P.W. - 3 shall be treated
to be an injured witness-The evidence of
the injured prosecutrix, P.W. - 3, also
finds support from the medical report and
evidence of P.W.-4, Dr. Deepa Tyagi-The
evidence of the prosecutrix is wholly
reliable, trustworthy and admissible in
evidence which alone proves the guilt of
the accused beyond reasonable doubt-

Settled law that the prosecutrix stands on the
same footing as an injured witness and where
her testimony is consistent and cogent, the
same corroborated by other materials, then it is
sufficient to bring home the guilt of the accused.

Criminal
Law
-
Code
of
Criminal
Procedure,
1973-
Section
154-
First
Information Report- Delay in lodging if
fatal-Delay of two days in lodging the first
information report-In this case, there is an
allegation of sexual assault upon a girl
child. In the event of a sexual offence with
a woman or a girl child of a family, before
lodging a first information report the
family thinks twice before taking any
action. So the delay in lodging the first
information report was very normal.

Delay in lodging of FIR in cases of sexual
assault cannot be held to be fatal since there is
a natural hesitancy in reporting the occurrence
due to social factors.

Criminal Law - Indian Penal Code, 1860-
Section 376 , POCSO Act, 2012 - Section 5
(f), (m)/6- Conviction under- Quantum of
Punishment- Since the case of the accused
-Appellant is covered by Section 376 (2)
where, the minimum imprisonment of 10
years has been provided, therefore, the
Court is of the opinion that considering
the conditions that the accused-appellant
is the sole bread earner of his family and
he is a young man, having no previous
criminal antecedents, there is possibility
of reform and therefore, it would be
appropriate that punishment be reduced
and a minimum punishment be awarded
to the accused-appellant-Under Section
376
IPC,
punishment
with
rigorous
imprisonment for a term not less than 10
years and a fine of Rs. 5,000/- and under
Section 6 of the POCSO Act, a punishment
with rigorous imprisonment for a term of
10 years and a fine of Rs. 5,000/- would
be sufficient to meet the ends of justice.

As the reformative theory of punishment has
been adopted in India, hence in view of the
mitigating factors involved, the quantum of
punishment
is
reduced
to
the
minimum
prescribed under Section 376 and Section 6 of
the POCSO Act. (Para 10, 12, 15, 16, 18, 19, 22,
23, 34, 45, 47, 49, 54)

Criminal Appeal partly allowed. (E-3)

Judgements/ Case Law relied upon:-

1. St. of Har. Vs Krishan, AIR 2017 SC 3125

2. Mukesh Vs St. for NCT of Delhi & ors. AIR
2017 SC 2161

3. Bhagwan Jagannath Markad Vs St. of Maha.
2016 (10) SCC 537
1176 INDIAN LAW REPORTS ALLAHABAD SERIES
4. Veer Singh Vs St. of U.P. 2014 (2) SCC 455

5. Shyam Babu Vs St. of U.P. AIR 2012 SC 3311

6. Mano Dutt & anr Vs St. of U.P. 2012 (77) ACC
209 (SC)

7. Mohammad Mian Vs St. of U.P. 2011 (72)
ACC 441 (SC)

8. Abdul Sayeed Vs St. of M.P. 2010 (10) SCC
259

9. Balraje Vs St. of Maha. 2010 (6) SCC 673

10. Jarnail Singh Vs St. of Punj. 2009 (6)
Supreme 526.)

11. Gul Singh Vs St. of M.P., 2015 (88) ACC 358
(SC)

12. Paras Ram Vs St. of H.P., 2001 (1) JIC 282
(SC).

13. 2013 CrLJ 2658 (SC)

14. Suryanarayan Vs St. of Kar. (2001) 9 SCC
129

15. St. of U.P. Vs Manoj Kumar Pandey ,AIR
2009 SC 711

16. Santosh Moolya Vs St. of Kar. 2010 (5) SCC
445

17. Ravindra Vs St. of M.P (AIR 2015 SC 1369)

18. Baldev Singh Vs St. of Punj., AIR 2013 SC
(Supp) 28

(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. We have heard Ms. Beena Mishra,
the Amicus Curiae for the appellant and Sri
Nagendra Kumar Srivastava the learned
AGA for the State.

2. This jail appeal arises out of a
judgment and order dated 21.12.2020
passed by the Special Judge POCSO
Act/Additional District & Sessions Judge,
Ghaziabad in Sessions Trial No.121 of
2015 (State of UP vs. Sonu Kanaujiya),
arising out of Crime No.119 of 2015,
Police
Station
Indirapuram,
District
Ghaziabad, convicting the appellant under
Section 376 of IPC and Section 5 (f), (m)/6
of POCSO Act, 2012 and sentencing him to
undergo imprisonment for life under
Section 5 (f) (m)/6 of the POCSO Act,
2012, with a fine of Rs.1,00,000/- and, in
default thereof, he was to undergo one
year's additional simple sentence.

3. As per prosecution case, on
31.1.2015, FIR (Ex.Ka.1) was lodged by
Satya Narayan Sharma, grandfather of the
prosecutrix,
alleging
in
it
that
the
prosecutrix was studying in Paradise Play
School, 120 Sector-1, Vaishali and on
31.1.2015, she informed him that she was
feeling pain in her private part because of
the fact that on 29.1.2015, accused
appellant had inserted his finger in her
private as a result of which, she had bled.
The prosecutrix was immediately taken to
Doctor, who had informed him that some
foul play had been played with her private
part. On the basis of this report, FIR under
Sections 376 of IPC and Sections 3 & 4 of
the POCSO Act, was registered against the
accused appellant.

4. While framing charge, the trial
Judge had framed charges against the
appellant under Section 376 of IPC and
Section 5 (f)&(m) & Section 6 of POCSO
Act. Section 376 of IPC and Section
5(f)&(m) & 6 of the POCSO Act are being
reproduced here as under:-

 376. Punishment for rape:- (1)
Whoever, except in the cases provided for
in sub-section (2), commits rape, shall be
punished with rigorous imprisonment of
7 All. Sonu Kanoujia Vs. State of U.P.
1177
either description for a term which shall not
be less than ten years, but which may
extend to imprisonment for life, and shall
also be liable to fine.

(2) Whoever,-

(a) being a police officer, commits
rape -

(i) within the limits of the police
station to which such police officer is
appointed; or

(ii) in the premises of any station
house; or

(iii) on a women in such police
officer's custody or in the custody of a police
officer subordinate to such police officer; or

(b) being a public servant, commits
rape on a woman in such public servant's
custody or in the custody of a public servant
subordinate to such public servant; or

(c) being a member of the armed
forces deployed in area by the Central or a
State Government commits rape in such area;
or

(d) being on the management or on
the staff of a jail, remand home or other place
of custody established by or under any law
for the time being in force or of a women's or
children's institution, commits rape on any
inmate of such jail, remand home, place or
institution; or

(e) being on the management or on
the staff of a hospital, commits rape on a
woman in that hospital; or

(f) being a relative, guardian or
teacher of, or a person in a position of trust
or authority towards the woman, commits
rape on such woman;or

(g)
commits
rape
during
communal or sectarian violence; or

(h) commits rape on a woman
knowing her to be pregnant; or

(j) commits rape, on a woman
incapable of giving consent; or

(k) being in a position of control
or dominance over a woman, commits rape
on such woman; or

(l) commits rape on a woman
suffering
from
mental
or
physical
disability; or

(m) while committing rape causes
grievous bodily harm
or
maims
or
disfigures or endangers the life of a
woman; or

(n) commits rape repeatedly on
the same woman;

shall be punished with rigorous
imprisonment for a term which shall not be
less than ten years, but which may extend
to imprisonment for life, which shall mean
imprisonment for the remainder of that
person's natural life, and shall also be liable
to fine.

Section 5 (f) & (m) & Section 6
of POCSO Act:-

5. (f):- whoever being on the
management or staff of an educational
institution or religious institution, commits
penetrative sexual assault on a child in that
institution.
1178 INDIAN LAW REPORTS ALLAHABAD SERIES

5.
(m):-
whoever
commits
penetrative sexual assault on a child below
twelve years;

6. Punishment for aggravated
penetrative sexual assault.-- (1) Whoever
commits aggravated penetrative sexual
assault shall be punished with rigorous
imprisonment for a term which shall not be
less than twenty years, but which may
extend to imprisonment for life, which shall
mean imprisonment for the remainder of
natural life of that person and shall also be
liable to fine, or with death.

(2) The fine imposed under subsection (1) shall be just and reasonable and
paid to the victim to meet the medical
expenses and rehabilitation of such victim.

5. So as to hold the accused appellant
guilty, prosecution had examined six
witnesses. No defence witness had been
examined
by
the
accused
appellant.
Statement of the accused appellant was
recorded under Section 313 Cr.P.C. in
which, he had pleaded his innocence and
had stated that there was false implication.

6. By the impugned judgment, the
trial Judge had convicted the accused
appellant under Section 376 of IPC and
Section 5 (f) & (m) & 6 of POCSO Act and
sentenced him, as mentioned in paragraph
no.1 of this judgment. Hence, this appeal.

7. Learned counsel for the appellant
submits:

(i) that the prosecutrix (PW-3)
being a child witness, was not trustworthy
and her
statement
does
not
inspire
confidence;

(ii) that the accused appellant had
been falsely implicated at the instance of
her father, who looks after the News work;

(iii) that the medical report of the
prosecutrix did not fully support the
prosecution case;

(iv) that the accused appellant
was alleged to have inserted his finger in
the private part of the prosecutrix and his
act is not that serious where he should have
been
punished
with
the
excessive
punishment which had been given by the
Trial Court;

(v) that the accused appellant is a
young man, aged about 24 years and, if
even assuming that out of anxiety, he
committed
the
offence,
he
deserved
sympathetic treatment and the sentence
awarded to him being excessive be
reduced; and

(vi) that there is two days' delay
in lodging the FIR and the said delay had
not been explained by the prosecution.

8. On the other hand, supporting the
impugned judgment, it has been argued by
learned State Counsel that the conviction of
the appellant was in accordance with law
and there was no infirmity in the same. He
submits that inserting of finger by a man in
the private part of a girl amounts to
commission of offence and it is not
necessary that a private part of a man had
to be inserted in the private part of a girl to
constitute the offence. He further submits
that the accused appellant is a mature
person, aged about 24 years, and for the act
which he had committed, he did not
deserve any sympathy.
7 All. Sonu Kanoujia Vs. State of U.P.
1179

9. We have heard learned counsel for
the parties and perused the record.

10. First of all, it would be
appropriate to make it clear that in the
cases of POCSO Act, the burden of proof
lies on the accused and there is no
presumption of innocence of the accused.

11. Section 29 of the POCSO Act:-
Presumption as to certain offences: -
When
a
person
is
prosecuted
for
committing an offence of sexual assault
under Section 3, 5, 7 and 9 of this Act,
against a minor, the special court trying
the case shall presume the accused to be
guilty.

12. There shall be presumption of
guilt on the part of the accused if he is
prosecuted for committing, abetting or
attempting offences under Section 3, 5, 7
& 9 of the Act.

13. Section 30 of the POCSO Act:-
Presumption of culpable mental state:-
(1) In any prosecution for any offence
under this Act which requires a culpable
mental state on the part of the accused,
the Special Court shall presume the
existence of such mental state but it shall
be a defence for the accused to prove the
fact that he had no such mental state with
respect to the act charged as an offence in
that prosecution.

(2) For the purposes of this
section, a fact is said to be proved only
when the Special Court believes it to
exist beyond reasonable doubt and not
merely when its existence is established
by a preponderance of probability.

Explanation.-In
this
section,
"culpable
mental
state"
includes
intention, motive, knowledge of a fact
and the belief in, or reason to believe, a
fact.

14. The Supreme Court held (in
State of Maharashtra vs. Mayer Hans
George AIR 1965 SC 722) that the
legislature
can
legislate
an
offence
without an ingredient of mens rea and the
requirement of actual knowledge/mens
rea that the act is in contravention of law
can be done away with in respect of an
offence.

15. However, the presumption,
under Section 30 of the Act, as to the
existence of motive, intention, knowledge
etc., can be rebutted by an accused. It
may be noticed that under Section 30 (2)
of the Act a fact must be proved, like in
all
criminal
prosecutions,
beyond
reasonable doubt.

16. This Court is deciding the appeal
keeping in mind the aspects of Sections 29
& 30 of the POCSO Act that firstly primary
burden of proof had to be discharged by the
prosecution.

17. Prosecutrix (PW-3), in her Court
statement, has stated that at the relevant
time she was studying in Renainsa Public
School, Sector-1, Vaishali and on the date
of incident, she was subjected to bad work.
She has clarified as to what is the meaning
of 'bad work'/habit'. She has further stated
that in the Court, one is supposed to narrate
truth. After recording satisfaction about the
mental knowledge and strength of the
prosecutrix, her statement was recorded by
the learned Trial Judge. She has stated that
the accused appellant was working in the
same School, where she was studying; he
took her on the rooftop of the School;
removed her underwear and inserted his
1180 INDIAN LAW REPORTS ALLAHABAD SERIES
finger in her private part as a result of
which, she felt pain and the blood started
oozing out from her private part. After
reaching home, she narrated the entire
incident to her mother and her mother and
aunt took her to the Doctor and then, she
had gone to Police Station. She has further
clarified as to the manner in which the
entire incident had occurred. In the Court,
she had identified the accused appellant by
saying that he was the same person, who
took her to the rooftop of the School, had
removed her underwear and had committed
the bad work with her. When she was
confronted with her statement under
Section 164 of Cr.P.C., she had made the
same statement before the Court.

18. In the cross examination, she was
confronted by the defence regarding her
mental status and she answered all the
questions in a proper manner. No question
had been put to the prosecutrix regarding
commission of offence with her and she
was subjected to cross-examination by
putting various unnecessary questions. No
proper evidence had been adduced by the
defence. Prosecutrix has reiterated that on
the pretext of offering Chocolate to her, she
was taken to the rooftop of the School and
she was alone there. She had further
reiterated that she had gone to the Doctor
for her medical examination.

19. In our view, the prosecutrix, P.W.
- 3 shall be treated to be an injured witness.
In several cases (some of them mentioned
below), the hon'ble Supreme Court has
observed that "deposition of an injured
witness should be relied upon unless there
are strong grounds for rejection of his/her
evidence
on
the
basis
of
major
contradictions and discrepancies." (State of
Haryana vs. Krishan reported in AIR
2017 SC 3125, Mukesh vs. State for NCT
of Delhi & Others reported in AIR 2017
SC 2161(three judges Bench), Bhagwan
Jagannath
Markad
vs.
State
of
Maharashtra reported in 2016 (10) SCC
537, Veer Singh vs. State of U.P. reported
in 2014 (2) SCC 455, Shyam Babu vs.
State of U.P. reported in AIR 2012 SC
3311, Mano Dutt & another vs. State of
U.P. reported in 2012 (77) ACC 209 (SC),
Mohammad Mian vs. State of U.P.
reported in 2011 (72) ACC 441 (SC),
Abdul Sayeed vs. State of M.P. reported
in 2010 (10) SCC 259, Balraje vs. State of
Maharashtra reported in 2010 (6) SCC
673 and Jarnail Singh vs. State of
Punjab reported in 2009 (6) Supreme
526.)

20. In this case, the evidence of the
injured prosecutrix, P.W. - 3, also finds
support from the medical report and
evidence of P.W.-4, Dr. Deepa Tyagi.
Regarding the objection about the child
witness not being mature enough to be
testify
the
following
citations
and
provisions are important and they are relied
on:-

A. Testimony of child witness
not
to
be
rejected
unless
found
unreliable & tutored: (Sec. 118, Evidence
Act): The testimony of a child witness
cannot be rejected unless found unreliable
& tutored (Gul Singh vs. State of M.P.,
reported in 2015 (88) ACC 358 (SC).

B.
Oath
to
child
witness:
Proviso to Section 4(1) of the Oaths Act,
1969 reads as under ----- "provided that,
where the witness is a child under twelve
years of age, and the Court or person
having authority to examine such witness is
of the opinion that, though the witness
understands the duty of speaking the truth,
he does not understand the nature of an
7 All. Sonu Kanoujia Vs. State of U.P.
1181
oath
or
affirmation,
the
foregoing
provisions
of
this
section
and
the
provisions of Section 5 shall not apply to
such witness; but in any such case the
absence of an oath or affirmation shall not
render inadmissible any evidence given by
such witness nor affect the obligation of the
witness to state the truth."

C. Omission to administer oath
(Sec. 7 of the Oaths Act, 1969): reads as
under: - "No omissions to take any oath or
make any affirmation, no substitution of
any one for any other of them, and no
irregularity whatever in the administration
of any oath or affirmation or in the form in
which it is administered, shall invalidate
any proceeding or render inadmissible any
evidence whatever, in or in respect of
which such omission, substitution or
irregularity took place, or shall affect the
obligation of a witness to state the truth."

D. Child witness when not
understanding the meaning of oath: It
has been laid down by the Supreme Court
that there is no legal bar against relying on
the testimony of a child witness to whom
oath could not be administered due to her
incapacity to understand the meaning of
oath. (see: Paras Ram vs. State of H.P.,
2001 (1) JIC 282 (SC).

E. Corroboration of testimony
of child witness not required if credible:
Conviction on the basis of testimony of a
child witness is permissible if evidence of
such child witness is credible, truthful and
corroborated. Corroboration is not must. It
is under rule of prudence. (See: 2013 CrLJ
2658 (SC).

21. In this case, the testimony of the
P.W.-3, the prosecutrix, is supported and
corroborated with the evidence of P.W. - 1
Satya Narain Sharma, the grandfather, the
P.W. - 2 Smt. Arti Sharma the mother, the
P.W. - 4, Dr. Deepa Tyagi and formal
witnesses P.W. -5 & P.W.6 and the
Medical Report.

22. Thus, it is concluded that the
evidence of the prosecutrix is wholly
reliable, trustworthy and admissible in
evidence which alone proves the guilt of
the accused beyond reasonable doubt.

23. From the above evidence, it is
also proved that the accused put finger into
the vagina of the prosecutrix and not his
penis. However, only fingering into the
private
part
of
a
girl
or
woman
unnecessarily with evil motive is sufficient
to prove the charge under Section 376 (3)
IPC and Sections 5 (f)&(m) and 6 of the
POCSO Act.

24. It was observed by the Supreme
Court in Suryanarayan vs. State of
Karnataka (2001) 9 SCC 129 that : (the
witness) who at the time of occurrence was
about four years of age, is the only solitary
eye-witness who was rightly not given the
oath. The time and place of the occurrence
and the attending circumstances of the case
suggest no possibility of there being any
other person as an eye-witness.

25. The evidence of the child witness
cannot be rejected per se, but the Court, as
a rule of prudence, is required to consider
such evidence with close scrutiny and only
on being convinced about the quality of the
statements
and
its
reliability,
base
conviction by accepting the statement of
the child witness. "if she is shown to have
stood the test of cross-examination and
there is no infirmity in her evidence, the
prosecution can rightly claim a conviction
based
upon
her
testimony
alone.
1182 INDIAN LAW REPORTS ALLAHABAD SERIES
Corroboration of the testimony of a child
witness is not a rule but a measure of
caution and prudence. Some discrepancies
in the statement of a child witness cannot
be made the basis for discarding the
testimony. Discrepancies in the deposition,
if not in material particulars, would lend
credence to the testimony of a child witness
who, under the normal circumstances,
would like to mix up what the witness saw
with what he or she is likely to imagine to
have seen. While appreciating the evidence
of the child witness, the Courts are
required to rule out the possibility of the
child being tutored. In the absence of any
allegation regarding tutoring or using the
child witness for ulterior purposes of the
prosecution, the Courts have no option but
to rely upon the confidence inspiring
testimony of such witness for the purposes
of holding the accused guilty or not."

26. Dr. Deepa Tyagi (PW-4) has
medically examined the prosecutrix, vide
Ex.Ka.3
(Medico
Legal
Examination
Report)
and
Ex.Ka.5
(Supplementary
Medico Legal Report). She states that she
noticed injuries on the outer private part of
the prosecutrix.

27. In the cross examination, this
witness has reiterated her statement that she
noticed injuries on the private part of the
prosecutrix. Though she has stated that she
had not medically examined the internal
portion
of
the
private
part
of
the
prosecutrix, but no further question has
been put to this witness. Even question to
the effect that the prosecutrix might have
sustained such injuries because of some
other activities had not been put to this
witness.

28. Satya Narayan Sharma (PW-1) is
the grandfather of the prosecutrix who
lodged the FIR. While supporting the
prosecution case, he has stated that the
prosecutrix made a complaint to her mother
about the pain felt by her in her private part
and she also narrated to her mother that it
was the accused appellant, who had
inserted his finger in her private part. While
supporting the FIR, he has categorically
stated that on 31.1.2015, he had lodged the
report.

29. Smt. Arti Sharma (PW-2) is the
mother
of
the
prosecutrix.
While
supporting the prosecution case, she had
stated that after returning home from
School, the prosecutrix had informed her
about the act/offence committed by the
accused appellant and she had noticed
blood on the underwear of the prosecutrix.
She has described the manner in which the
entire incident was narrated to her by the
prosecutrix.

30. In the cross-examination, this
witness remained firm and nothing could
be elicited from her.

31. Vijay Kumar and Vimal Kumar
(PW-5 and PW-6) are the Investigating
Officers and have duly supported the
prosecution case.

32. In the statement under Section
313 of Cr.P.C., all the relevant questions
were put to the accused, which have been
answered by him.

33. The appellant's counsel has also
argued that there is a delay of two days in
lodging
the
first
information
report,
therefore, he submits it could be said that
the alleged occurrence and FIR were the
result of some conspiracy and were not
correct and they were a result of some
afterthought.
7 All. Sonu Kanoujia Vs. State of U.P.
1183

34. In this case, there is an allegation
of sexual assault upon a girl child. In the
event of a sexual offence with a woman or
a girl child of a family, before lodging a
first information report the family thinks
twice before taking any action. So the delay
in lodging the first information report was
very normal.

35. Considering these circumstances,
the Hon'ble Supreme Court in the cases of
State of U.P. vs. Manoj Kumar Pandey
reported in AIR 2009 SC 711 (three judge
Bench) and Santosh Moolya vs. State of
Karnataka reported in 2010 (5) SCC 445
held that the normal rule that prosecution
has to always explain the delay does not
apply to rape cases.

36. Thus, the argument of the
appellant-accused regarding two days'
delay in lodging the FIR is hereby rejected.

37. Close scrutiny of the evidence
makes
it
clear
that
on
29.1.2015,
prosecutrix was subjected to rape by the
accused appellant and the prosecutrix
immediately reported the entire incident to
her mother.

38. We find no substance in the
argument of the defence that the statement
of
the prosecutrix
does
not
inspire
confidence of the Court. Prosecutrix is a
small girl; at the time of incident, she was
four and half years old and even at the time
of recording evidence, she was just about
seven years old, but she has answered all
the questions in a proper manner. She
appears to be a fully trustworthy witness
and there is no reason for this Court to
disbelieve her statements. Furthermore,
there is no contrary evidence available on
record to suggest that the accused appellant
has been falsely implicated. In this regard,
the argument advanced by the accused side
is found baseless. No such evidence has
been brought on record by the defence.
Even in the cross-examination of the
prosecutrix, she was not subjected to
answer any such question which may be of
any
help
to
the
defence.
In
the
examination-in-chief, she has reiterated as
to the manner in which she was subjected
to wrong act by the appellant and no such
cross question has been put to her in the
cross-examination.
Statement
of
the
prosecutrix duly finds support from the
statement of the Doctor (PW-4) who had
noticed injuries on her private part. Here
also, no such question was put to the
Doctor
about
the
statement
of
the
prosecutrix or the medical examination of
the prosecutrix. Even assuming that the
internal examination of the prosecutrix has
not been done by the Doctor, it hardly
makes any difference once the Doctor
herself found injuries on her private part.
The other relevant witnesses, i.e. PW-1
(lodger of FIR) and PW-2 (mother of the
prosecutrix) have also duly supported the
prosecution case.

39. Taking cumulative effect of the
evidence, we are of the view that the trial
Court was fully justified in convicting the
accused appellant.

40. The next question, which arises
for consideration of this Court, is as what
should be the appropriate sentence to be
awarded to the accused appellant.

41. The Court is convinced that the
appellant was a young man with no
criminal antecedents and he can always be
given a chance for reformation.

42. It is true that in this case the
matter pertains to Section 376 IPC and
1184 INDIAN LAW REPORTS ALLAHABAD SERIES
Sections 5(f)&(m) and 6 of the POCSO Act
but the accused has no previous criminal
history except this case and he has not
caused any other injury to the prosecurtrix.
The case is that the accused inserted his
finger into the genitals of the prosecutrix
which according to the amended Section
375(b) IPC (amended by Act 13 of 2013) is
now considered in the category of rape.
Therefore, the crime committed by the
accused-appellant
is
punishable
under
Section 376 (2) (d & f) of the I.P.C. for
which there is a punishment of rigorous
imprisonment for a term not less than 10
years
but
which
may
extend
the
imprisonment for life and a fine is also
provided.

43. Since the offence was committed
in a school where the accused-appellant
was a Class IV employee, therefore, the
amended Section of 376 (C) (c) of the IPC
(amended in 2013) is also applicable. For
which there is a punishment of rigorous
imprisonment which shall not be less than
five years but which may extend to 10
years and a fine also has been provided.

45. Since the case of the accused -
appellant is covered by Section 376 (2)
where, the minimum imprisonment of 10
years has been provided, therefore, the
Court is of the opinion that considering the
conditions that the accused-appellant is the
sole bread earner of his family and he is a
young man, having no previous criminal
antecedents, there is possibility of reform
and therefore, it would be appropriate that
punishment be reduced and a minimum
punishment be awarded to the accusedappellant.

46. The accused-appellant has also
been tried under the POCSO Act. It is
proved from the above discussions that the
accused has committed an offence under
Section 5 (f & m) of the POCSO Act and
for which under Section 6 of the POCSO
Act (prior to the amendment of 2019) there
was a punishment for imprisonment not
less than 10 years which may extend to life
imprisonment also and a fine.

45.
Therefore,
considering
the
aforementioned circumstances relating to
the accused-appellant, this Court is of the
opinion that a minimum punishment with
rigorous imprisonment for a term not less
than 10 years and a fine of Rs. 5,000/-
would meet the ends of justice.

47. Though, the Supreme Court in its
recent judgement in Ravindra v. State of
Madhya Pradesh (AIR 2015 SC 1369)
has ruled that accused in a rape case may
be awarded lesser sentence than the
minimum ten years where adequate and
special reasons exist by invoking the
proviso to Section 376(2)(g) of the IPC for
awarding lessor sentence, we think it would
be appropriate to punish the appellant with
the minimum punishment.

48. In the case of Baldev Singh vs.
State of Punjab reported in AIR 2013 SC
(Supp) 28, the Supreme Court had reduced
the sentence on a similar ground.

49. We are of the opinion that no
sentence lesser than that prescribed in the
IPC and POCSO Act should be awarded
to the accused-appellant. The trial court
had punished the accused-appellant under
Section 376 IPC and the Section 5 (f &
m)/ 6 of the POCSO Act. But because of
the provisions of Section 42 of the
POCSO Act that the highest punishment
be awarded had punished the accused -
appellant only under Section 5 (f & m)/6
of the POCSO Act.
7 All. Sonu Kanoujia Vs. State of U.P.
1185

50. If we peruse the Section 376 IPC
and Sections 5/6 POCSO Act, we find that
punishments for the offences committed
under the provisions in the year 2015 were
similar.

51. In Section 6 of the POCSO Act
(amended by the Act No. 25 of 2019 "w.e.f.
16.8.2019") the minimum punishment of
rigorous imprisonment "not less than 20
years" was added. Earlier it was 10 years
only.

52. Similarly, Section 376 IPC was
amended in 2018 and prior to this
amendment
when
the
offence
was
committed in the year 2015 there was
amended Section of 376 IPC available
which was amended in the year 2013 in
which only punishment with rigorous
imprisonment for a term not less than 10
years and a fine was provided.

53. On the question of punishment,
we, because of the reasons which have
been stated in this judgement, propose to
award the minimum punishment to the
appellant..

54. We are of the opinion that under
Section 376 IPC, punishment with rigorous
imprisonment for a term not less than 10
years and a fine of Rs. 5,000/- and under
Section 6 of the POCSO Act, a punishment
with rigorous imprisonment for a term of
10 years and a fine of Rs. 5,000/- would be
sufficient to meet the ends of justice. In the
case of non-payment of fine, under Section
376 IPC, the appellant would undergo an
additional
one
year
of
rigorous
imprisonment and in the case of nonpayment of fine under Section 6 of the
POCSO Act, the appellant would further
undergo one year of additional rigorous
imprisonment.

55. Therefore, on the basis of the
aforesaid discussion, we are of the view
that conviction under Section 376 IPC and
Section 6 of the POCSO Act is liable to be
maintained and the appeal is dismissed.
However, the punishment awarded by the
lower court stands modified.

ORDER

56. The appeal in respect of
conviction under Section 376 IPC and
Section 6 of the POCSO Act is dismissed
and the conviction awarded by the Trial
Court is affirmed. However, the Appeal in
respect of punishment stands party allowed
as under:-

57. Under Section 376 IPC, the
accused-appellant
shall
undergo
punishment for a period of 10 years
rigorous imprisonment with a fine of Rs.
5,000/-. In case of default of payment of
fine, the accused-appellant shall undergo
one year additional rigorous imprisonment.

58. Under Section 6 of the POCSO
Act, the accused-appellant shall undergo
punishment for a period of 10 years
rigorous imprisonment with a fine of Rs.
5,000/-. In case of default of payment of
fine, the accused-appellant shall undergo
one
year
of
additional
rigorous
imprisonment.

59. The punishment awarded under
Section 376 IPC and Section 6 of the
POCSO Act shall run concurrently. The
period of incarceration of the accused -
appellant in the aforesaid case crime
number shall be adjusted as per law. The
fine imposed upon the accused shall be
given to the prosecutrix as compensation.

60. For the hard work which has been
put in by the learned Amicus Curiae Ms.
1186 INDIAN LAW REPORTS ALLAHABAD SERIES
Beena Mishra, we quantify her fee as Rs.
35,000/- which shall be payable to her by
the Legal Services Authority forthwith.
----------
(2022)07ILR A1186
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 31.05.2022

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE UMESH CHANDRA SHARMA, J.

Criminal Appeal No. 984 of 2015
connected with
Government Appeal No. 1774 of 2015

Manoj @ Bhorai ...Appellant
Versus
State of U.P. ...Opp. Party

Counsel for the Appellant:
Sri Sanjay Tiwari, Sri Adya Prasad Tewari, Sri
Birendra Singh, Sri M.N. Pathak, Sri Ramesh
Kumar Singh, Sri Sheo Shankar Tripathi, Sri
Pawan Kumar Vishwakarma, Sri Vijit Saxena

Counsel for the Opp. Party:
Govt. Advocate

Criminal Law- Indian Penal Code, 1872-
Section 376- Code of Criminal Procedure,
1973-
Section
154-
Delayed
First
Information Report- Section 157- Special
Report to Magistrate- There is 68 days
delay in lodging the F.I.R, but the lower
trial court did not find it unnatural or
unusual and found sufficient explanation of
the delay-If causes are not attributable to
any effort to concoct a version and the
delay
is
satisfactorily
explained
by
prosecution, no consequence shall be
attached to mere delay in lodging FIR and
the delay would not adversely affect the
case of the prosecution. Delay caused in
sending the copy of FIR to Magistrate
would also be immaterial if the prosecution
has been able to prove its case by its
reliable evidence.
Where
the
prosecution
has
satisfactorily
explained the delay in lodging the first
information report and there is nothing to
suggest concoction, of a story, then the said
delay will not adversely affect the case of the
prosecution.

Juvenile Justice (Care and Protection of
Children)
Act,
2015-
Section
94-
Determination of age of Prosecutrix - The
prosecutrix
is
the
sole
witness
of
kidnapping,
abduction
and
rape.
According
to
radiological
examination
report, she was found to be 18 years of
age, but according to her High School
Certificate her date of birth recorded is
03.05.1992, thus, she was aged about 17
years at the time of commission of crime.

As per the provisions of the juvenile Justice Act
primacy has to be given to the high school
certificate of the prosecutrix and not to the
ossification test in order to determine her age,
hence prosecutrix held to be minor on date of
occurrence.